This Subscription Services Agreement (“STS”) sets forth the terms and conditions that apply to access and use of the Services (as defined below) of Hence Creative, Inc., a Delaware public benefit corporation (“Hence”) by the customer set forth on an Subscription Order submitted to Hence (“Customer”). This STS, together with (i) any Subscription Order submitted by Customer and accepted by Hence (“Subscription Order”), (ii) any statement of work on Hence’s form submitted by Customer and accepted by Hence after the Effective Date (“SOW”), and (iii) Hence’s Privacy Policy that can be found at https://hencecreative.com/privacy-policy/, constitute the “Agreement.” Hence and Customer may be referred to herein individually as a “Party” or collectively as the “Parties.”
This Agreement becomes binding and effective on Customer upon the earliest of: (1) when Customer accesses or uses the Services, (2) when Customer clicks an “I Accept,” “Sign up” or similar button or check box referencing this Agreement, or (3) when Customer submits a signed Subscription Order (the “Effective Date”).
BEFORE ACCEPTING THIS AGREEMENT, CUSTOMER IS ADVISED TO CAREFULLY READ THE TERMS OF THIS AGREEMENT AND ANY APPLICABLE DOCUMENTATION. BY ACCEPTING THIS AGREEMENT, CUSTOMER (1) AGREES TO BE BOUND BY AND BECOMES A PARTY TO THIS AGREEMENT AND (2) CONFIRMS THAT THE INDIVIDUAL ENTERING THIS AGREEMENT HAS AUTHORITY TO SO BIND CUSTOMER WITHOUT FURTHER ACTION BY CUSTOMER. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER SHOULD NOT SUBMIT A SIGNED SUBSCRIPTION ORDER OR CLICK “I AGREE…” AND THE SERVICES WILL NOT BE USABLE.
WHEREAS, Customer desires to utilize Hence’s Services as described herein and Hence desires to provide Customer access to such Services, subject to the terms and conditions set forth in the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1. “Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
1.2. “Authorized Users” means Customer’s employees, consultants, contractors and agents (a) who are authorized by Customer to access and use the Services in accordance with the Agreement, and (b) for whom access to the Services has been purchased hereunder; provided, in each case, that no competitor of Hence (as reasonably determined by Hence) may be an Authorized User. Each Authorized User shall hold one Seat (as defined in the Order).
1.3. “Customer Data” means information, data and other content, in any form or medium, that is collected, uploaded or otherwise processed, directly or indirectly by Customer through the Services. Customer Data may, in some situations, include Authorized Users’ Personal Information. Customer Data does not include Resultant Data or Usage Data.
1.4. “Customer Systems” means Customer’s internal systems, including but not limited to computers, servers, software, database, VOIP systems and website.
1.5. “Data Protection Laws” mean collectively any applicable data protection, privacy, or similar laws applicable to the processing of Personal Information in the jurisdiction where Services are performed or used or applicable to the Personal Information processed as part of the Services, if any.
1.6. “Intellectual Property Rights” means all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, data or database protection, or other intellectual property rights Laws and all similar or equivalent rights or forms of protection, in any part of the world.
1.7. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction. “Law” includes all Data Protection Laws.
1.8. “Personal Information” means information which may be used, alone or in conjunction with any other information, to identify a specific person or to make a specific person identifiable, including, without limitation, any (1) name, social security number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number; (2) unique biometric data, such as fingerprint, voice print, retina, iris image, or other unique physical representation; (3) unique electronic identification number, address, or routing code; or (4) telecommunication identifying information or access device, in each case to the extent protected under any Data Protection Law.
1.9. “Resultant Data” means data or information related to or derived from Customer Data or an Authorized User’s Personal Information that is processed by Hence in an aggregate, de-identified, or anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.10. “Sensitive Personal Information” means a class of Personal Information including (a) social security number, passport number, driver’s license number, or similar identifier, (b) credit or debit card number (other than truncated digits), financial information, banking account numbers or passwords, (c) employment, financial, genetic, biometric or health information, (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation, (e) account passwords, (f) criminal history, or (g) any other information or combinations of information that falls within the definition of “special categories of data” under any other Data Protection Law.
1.11. “Services” means Hence’s services identified on the Subscription Order, each SOW (as applicable), and the online application, platform, and/or application programming interface that enables Customer’s and Authorized Users’ access to such services.
1.12. “Third-Party Materials” means any files, content, designs, models, data sets, project information, materials, documents, computer programs or similar material (including, without limitation, any modules and components, functions and features of a computer program), media, audio, images, names, email addresses, comments, notes, links and other content, data, information, applications and services made available to Customer by any third party through or in connection with a Service or any website owned or operated by or for Hence.
1.13. “Usage Data” means any data or other information processed by or on behalf of Hence relating to the provision, access, use, operation, or performance of the Services by or on behalf of Customer and its Authorized Users, including any data or other information derived therefrom.
Subject to and conditioned on Customer’s (including the Authorized Users’) compliance with the terms of the Agreement, Hence grants to Customer a non-exclusive, limited, revocable, non-transferable, and non-sublicensable right to access and use the Services during the Term (as defined below), solely for use by Customer and its Authorized Users, where applicable, in accordance with the Agreement. Such use is limited to Customer’s internal use. Hence will provide to Customer the Access Credentials within a reasonable time following the Effective Date. Access Credentials are personal to Customer and each Authorized User and may not be shared with or used by any other party. For the avoidance of doubt, each Seat is available for use only by the individual Authorized User designated for such Seat on the Subscription Order; Seats are not transferrable. Customer has and will retain sole responsibility for all access to and use of the Services by any Customer personnel and each Authorized User and will securely administer the distribution and use of all Access Credentials to protect against any unauthorized access to or use of the Services.
The Services may permit Customer and Authorized Users to upload data, information, or other materials, including Customer Data, in a manner that makes such data, information, or other materials publicly available and/or accessible to other users of the Services. Customer is solely responsible for any data, information, or other materials, including Customer Data that it uploads to the Services. Neither Customer nor any Authorized User will use the Services to do any of the following:
Customer acknowledges that Hence has the right, but no obligation, to monitor any data, information, or other materials that Customer or Authorized Users may upload to the Services. Hence may remove any data, information, or other material that Hence determines, in its sole discretion, violates the foregoing requirements; provided, that Hence takes no responsibility and assumes no liability for any data, information, or other material that is uploaded to the Services by Customer or any Authorized User.
Hence reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of the Services to its customers; (ii) the competitive strength of or market for the Services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.
Hence may, from time to time, supply updates to the Software to Customer free of charge. However, Customer acknowledges that Hence is under no obligation to supply any Software updates to Customer. If Hence updates the Software, Hence will use commercially reasonable efforts to notify Customer of any such updates. Where Hence has released a Software update, Customer shall promptly install the Software update. Hence shall have no responsibility or liability for any issues, errors, failures, security vulnerabilities, or other problems arising from or related to Customer’s failure to install the Software update, and all warranties and support obligations shall be void with respect to any Software that has not been updated. Some Software updates may require installation to continue using the Software. Customer acknowledges that Hence has no obligation to provide technical support to Customer for Software that was not updated.
Hence may, directly or indirectly, suspend, terminate, or otherwise deny Customer’s, Authorized Users’, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if Hence believes that there has been a material breach of Customer’s obligations under the Agreement, a security breach, a violation of Law, an Authorized User’s violation of Section 2.2, or an Authorized User’s request to opt-out of the Services or exercise of any right under Data Protection Laws. This Section 2.6 does not limit any of Hence’s other rights or remedies, whether at Law, in equity, or under the Agreement.
So long as Customer is current in payment of the all fees and is not in default of any material terms of the Agreement, Hence shall provide tier one support to Customer for critical Services failures resulting in complete or substantial shutdown of the Services within one (1) business day of any request, and Hence shall respond to all other support requests as soon as reasonably and commercially practical on an as needed basis at its own cost and expense. The support in using the Services may occur at Hence’s discretion by phone, email, or online chat request(s) to Hence for help on incidental needs related to use of Services.
In addition to Hence’s standard support services, Hence will provide additional support and implementation services (“Implementation Services”) as requested by Customer and agreed by Hence pursuant to an SOW. Hence will use commercially reasonable efforts to complete the Implementation Services. Customer shall reimburse Hence for all reasonable and actual travel costs incurred related to its provision of the Implementation Services as set forth in the applicable SOW. Any professional services by Hence beyond standard support and Implementation Services are beyond the scope of this Agreement and must be agreed to in a separate written agreement executed by Hence and Customer.
(a) Non-Exclusivity of Implementation Services. Customer acknowledges that Hence may provide services similar to the Implementation Services on behalf of other Hence customers. Hence may work for other customers without restriction, even if work is done for a potentially competing company or individual. Nothing in the Agreement may be construed to limit Hence’s business, including the provision of the Services to other Hence customers.
(b) Ownership. Notwithstanding anything to the contrary in the Agreement or any SOW, Hence retains ownership of all of Hence’s Intellectual Property Rights directly or indirectly related to the Services, including all Implementation Services performed under any SOW, whether now existing or whether conceived, developed, or reduced to practice, solely or jointly with Customer, in connection with the Implementation Services or otherwise related to Hence’s Services under this Agreement.
Customer shall pay Hence the fees set forth in the applicable Subscription Order or any applicable SOW (the “Fees”). Unless otherwise set forth in the applicable Subscription Order or applicable SOW, invoices are due and payable in United States dollars within thirty (30) days after the invoice date, without deduction or setoff. Customer shall pay or reimburse Hence for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of or related to the Agreement or the transactions contemplated hereby, other than net income taxes imposed on Hence. Any amount not paid when due is subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Hence does not give refunds for the Services unless expressly provided for in the Agreement.
In connection with this Agreement each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Subject to Section 4.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, or information that should by its nature be considered confidential, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential.” Without limiting the foregoing, the Services and the underlying data (including Resultant Data and Usage Data) are the Confidential Information of Hence and Customer Data is the Confidential Information of Customer.
Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with the Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not known to the Receiving Party to be under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
Neither Party shall use the Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither Party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information except to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with the Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 4.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 4. Each Party shall safeguard the other Party’s Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care, shall promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information, and cooperate with the Disclosing Party to prevent further unauthorized use or disclosure.
If the Receiving Party or any of its representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 4.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 4.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
During the Term and for one (1) year thereafter, Customer shall not, and shall not assist any other person to, directly or indirectly recruit, employ, engage as an independent contractor, or solicit for employment or engagement as an independent contractor any person that is, or within the six (6) months prior to such recruitment, hiring, engagement or solicitation, was, employed or engaged as an independent contractor by Hence; provided, that the foregoing obligation shall not apply to a bona fide response to a general job posting or solicitation that was not targeted at a particular employee or contractor.
Hence may make Third-Party Materials available to Customer, directly or indirectly, through the Services (including Third-Party Materials shared by other users of the Services). In some cases, such Third-Party Materials may appear to be a feature or function within, or extension of, the Services. Accessing such Third-Party Materials may cause Customer’s computer, without additional notice, to communicate with a third-party website—for example, for purposes of providing Customer with additional information, features, and functionality. Such connectivity or access to third-party websites or Third-Party Materials is governed by the terms (including the disclaimers and notices) found on such sites or otherwise associated with the Third-Party Materials and access to and use of Third-Party Materials and other products and services from Hence may require assent to separate terms or payment of additional fees. Customer acknowledges that any viewing, use, or access of Third-Party Materials by Customer is at Customer’s sole risk. Under no circumstances will Hence be liable for any loss or damage caused by Customer’s viewing, use, or reliance on Third-Party Materials. Any dealings between Customer and any third party in connection with such Third-Party Materials, including, without limitation, such third party’s privacy policies, use of Personal Information, delivery of and payment for goods and services, and any other terms associated with such dealings, are solely between Customer and such third party. Hence may at any time, for any reason, modify or discontinue the availability of any Third-Party Materials through the Services.
As between Customer and Hence, Hence is and will remain the sole and exclusive owner of all right, title, and interest in and to the Services and any underlying data (excluding Customer Data, but including Resultant Data and Usage Data), including all Intellectual Property Rights therein, and with respect to Third-Party Materials, the applicable third-party providers own all right, title and interest, including all Intellectual Property Rights, in and to such Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Services or underlying data (other than the Customer Data) except as expressly set forth in Section 2 or the applicable third-party license, in each case subject to any restrictions in the Agreement (or such third-party license, as applicable). All other rights in and to the Services are expressly reserved by Hence. To the extent Customer has any right, title or interest in the Resultant Data or Usage Data, Customer hereby assigns all such right, title, and interest in and to such Resultant Data and Usage Data, including in each case, all Intellectual Property Rights relating thereto. Customer hereby grants to Hence a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable (only to a successor in interest by way of merger, reorganization or sale of all or substantially all assets of the business unit performing the Services or equity, or operation of law), sublicensable license to use, copy, modify, or distribute, including by incorporating into the Services, any suggestions, enhancement requests, recommendations or other feedback provided by Customer, its users, and any Authorized User, relating to the operation of the Services. Included in such license is the right to (i) identify or reference Customer as a user of Hence’s Services and a right to use Customer’s logo in connection therewith, and (ii) perform and make public a case study with respect to Customer and its use of the Services and results of the Services.
As between Customer and Hence, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data and the Customer Systems, including all Intellectual Property Rights embodied therein, subject to the rights and permissions granted in this Section 7.2. Customer hereby grants to Hence a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, sublicensable and transferable license to (i) use, copy, process, transmit, store, host, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of the Customer Data in connection with the Services and (ii) otherwise access, use or make reference to any Intellectual Property Rights in the Customer Data: (a) to provide the Services including to enable the Customer and any Authorized Users to access and use the Services; (b) for diagnostic purposes; (c) to make any changes or improvements to the Services, including as set forth in Section 2, whether requested by the Customer or not; (d) to develop other Services; and (e) as reasonably required for the performance of Hence’s obligations under the Agreement. For clarity, the foregoing license continues after termination of the Agreement with respect to any Customer Data that Customer or any Authorized User posts or otherwise makes publicly available through the Services. To the extent any Customer Data constitutes Personal Information, the terms of Hence’s Privacy Policy apply.
Each Party shall use and process any Personal Information that such Party has access to in connection with the Agreement in accordance with applicable Data Protection Laws.
Each Party represents and warrants to the other Party that (a) it is duly organized, validly existing, and in good standing under the Laws of the jurisdiction of its incorporation or other organization, (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under the Agreement; and (c) when executed/electronically accepted and delivered by both Parties, the Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
Customer represents, warrants, and covenants to Hence that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Hence and processed in accordance with the Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law. To the extent Customer has access to and utilizes any Authorized Users’ Personal Information in the Services, Customer represents and warrants that Customer has secured all permissions necessary to allow Hence to process such Personal Information.
The Services may contain or require use of third-party software that require notices or additional terms and conditions. In order to use the functionality related to such third-party software, Customer must agree to and comply with any additional terms and conditions set forth in applicable third-party notices or agreements. Customer acknowledges that failure or refusal to accept such third-party terms may result in reduced, limited, or impaired functionality of the Services, for which Hence shall have no responsibility or liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, HENCE MAKES NO WARRANTIES AND ACCEPTS NO LIABILITY WITH RESPECT TO THIRD-PARTY SOFTWARE.
EXCEPT FOR THE EXPRESS WARRANTIES AND COVENANTS SET FORTH IN SECTION 7.1, ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” HENCE DOES NOT WARRANT THAT CUSTOMER’S USE OR INTEGRATION OF THE SERVICES WITH CUSTOMER’S PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS OR SPECIFICATIONS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, HENCE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
Hence shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees (“Losses”) incurred by Customer resulting from any claim or action by a third party that Customer’s use of the Services (excluding third party materials) in accordance with the Agreement infringes or misappropriates such third party’s Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from (a) modification of the Services other than: (i) by or on behalf of Hence; or (ii) with Hence’s written approval in accordance with Hence’s written specification, (b) combination of the Services (or any portion thereof) with any other product or service, (c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Hence, (d) Customer Data, (e) Authorized User Personal Information (unless required by Data Protection Laws), (f) Hence implementing instructions or requests of Customer, (g) any inaccuracy, inefficiency, or omission related to the Customer Systems, or (h) any act, omission, or other matter described in Section 9.2, whether or not the same results in any claim or action against or Losses by any Hence Indemnitee.
Customer shall indemnify, defend, and hold harmless Hence and its affiliates and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Hence Indemnitee”) from and against any and all Losses incurred by such Hence Indemnitee resulting from any claim or action by a third party (other than an affiliate of a Hence Indemnitee) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from (a) Customer’s and its Authorized Users’ use of the Services, (b) Customer Data, including any processing of Customer Data whether or not through the Customer Systems, by or on behalf of Hence in accordance with the Agreement, (c) any other materials or information (including any documents, data, specifications, content, or technology) provided by or on behalf of Customer or any Authorized User, (d) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under the Agreement, or (e) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer or any third party, including Customer’s Authorized Users, on behalf of Customer, in connection with the Agreement. The foregoing obligation does not apply to the extent that the alleged Losses arise from any act or other matter described in Section 9.1 to the extent Hence is indemnifying Customer for such act or other matter.
Each Party shall promptly notify the other Party in writing of any claim or action for which such Party believes it is entitled to be indemnified. The Party seeking indemnification shall cooperate with the other Party at the indemnitor’s sole cost and expense. The indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the indemnitor’s sole cost and expense. The Party seeking indemnification may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The indemnitor shall not settle any claim or action in any manner that adversely affects the rights of the Party seeking indemnification without that Party’s prior written consent, which shall not be unreasonably withheld or delayed. If the indemnitor fails or refuses to assume control of the defense of such claim or action, the Party seeking indemnification shall have the right, but no obligation, to defend against such claim or action, including settling such claim or action after giving notice to the indemnitor, in each case in such manner and on such terms as the Party seeking indemnification may deem appropriate. The Party seeking indemnification’s failure to perform any obligations under this Section 9.3 will not relieve the indemnitor of its obligations under this Section 9, except to the extent that the indemnitor can demonstrate that it has been prejudiced as a result of such failure.
If any of the Services are, or in Hence’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services is enjoined or threatened to be enjoined, Hence may, at its option and sole cost and expense (a) obtain the right for Customer to continue to use the Services materially as contemplated by the Agreement, (b) modify or replace the Services, in whole or in part, to seek to make the Services (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services, as applicable, under the Agreement, or (c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and require Customer to immediately cease any use of the Services or any specified part or feature thereof, provided that if such termination occurs prior to the first anniversary of the Effective Date, subject to Customer’s compliance with its post-termination obligations set forth in Section 11.3, Customer will be entitled to a pro rata refund.
THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND HENCE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HENCE WILL NOT BE LIABLE FOR CUSTOMER’S LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF HENCE OR ITS AFFILIATES HAVE BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. HENCE’S (AND ITS AFFILIATES’) TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNTS PAID TO HENCE BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10.2. IN ADDITION TO ANY OTHER LIMITATION OF LIABILITY OR DISCLAIMER SET FORTH IN THIS AGREEMENT, HENCE, ITS SUBSIDIARIES, AFFILIATES, ASSIGNEES, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, SERVICE HENCES, AND CONTENT HENCES WILL NOT BE RESPONSIBLE FOR ANY ACTIONS CUSTOMER OR ITS AUTHORIZED USERS TAKE IN CONJUNCTION WITH OR SUBSEQUENT TO CUSTOMER’S USE OF HENCE’S WEBSITE OR SERVICES. HENCE PROVIDES INFORMATION AND TOOLS THROUGH ITS WEBSITE AND SERVICES USEFUL FOR MAKING BUSINESS DECISIONS RELATED TO, AMONG OTHER THINGS, CONTENT CREATION, MARKETING ACTIVITIES, RELATED BUSINESS OPERATIONS AND PROFESSIONAL DEVELOPMENT. CUSTOMER REMAINS SOLELY RESPONSIBLE FOR ANY DECISIONS MADE OR ACTIONS TAKEN IN RELIANCE ON CUSTOMER OR ITS AUTHORIZED USER’S ACCESS OR USE OF HENCE’S WEBSITE OR SERVICES. HENCE DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, OR THE RESULT OF USE, OF THE INFORMATION AND CONTENT IN HENCE’S WEBSITE AND SERVICES IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. THE INFORMATION AND CONTENT MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND HENCE MAY MAKE CHANGES OR IMPROVEMENTS AT ANY TIME. HENCE MAKES NO WARRANTIES THAT CUSTOMER’S USE OF THE INFORMATION AND CONTENT WILL NOT INFRINGE THE RIGHTS OF OTHERS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH CONTENT.
The Agreement commences as of the Effective Date and will continue in effect for twelve (12) months from such date (the “Initial Term”), unless earlier terminated by a Party in accordance with the terms of this Agreement. Following the Initial Term, this Agreement automatically renews for successive twelve (12) month terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either Party provides notice of non-renewal to the other Party at least thirty (30) days prior to the end of the then-current Term.
In addition to any other express termination right set forth elsewhere in this Agreement either Party may terminate the Agreement, effective on written notice to the other Party, if (i) the other Party materially breaches the Agreement and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach, or (ii) if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, in each case that is not discharged within sixty (60) days; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Upon any expiration or termination of the Agreement, except as expressly otherwise provided in the Agreement:
Hence will be excused from performance of the Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
This STS (including any modification hereof in accordance with Section 12.6), together with the Subscription Order, any SOW, and Hence’s Privacy Policy, represents the sole and complete agreement between Customer and Hence concerning its subject matter, and supersedes all prior agreements (both written and oral) between the Parties with respect thereto.
If any term or provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of the Agreement will continue in full force and effect.
(a) Utah law governs the Agreement without reference to its conflict of law principles.
(b) All disputes arising out of or related to the Agreement (each, a “Dispute”) must be submitted to binding arbitration in accordance with the commercial rules of the American Arbitration Association then in effect (the submission date to be deemed the “Arbitration Date”).
(c) The Parties must institute any permitted legal suit, action, or proceeding arising out of or related to the Agreement exclusively in the federal or state courts in and for Salt Lake County, Utah, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein is effective service of process for any suit, action, or other proceeding brought in any such court. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement or the transactions contemplated hereby.
Any notices to Hence or to Customer must be sent to Hence’s or Customer’s, as applicable, address, via personal delivery, registered or certified mail, overnight courier, or email (with confirmation of transmission) and are deemed given (a) if delivered personally, upon receipt; (b) if delivered by registered or certified mail, three business days following deposit with the USPS; (c) if delivered by overnight courier, on the business day following deposit with such courier; and (d) if delivered by email, when sent, if sent during the recipient’s normal business hours, and otherwise on the next business day. Each Party’s address for service of notices is included on the Subscription Order and/or SOW.
To Customer: to the most recent address provided by Customer to Hence in writing.
This Agreement may be updated or modified from time to time by Hence in its sole discretion. Hence has no obligation to provide Customer with prior notice of any such update or modification; Customer is advised to regularly review this Agreement. Continued use of the Services following the effective date of any such update or modification shall constitute Customer’s acceptance of and agreement to such update or modification. Hence shall not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Hence specifically agrees to such provision in writing and such writing is signed by an authorized agent of Hence.
Customer may not assign, delegate, or otherwise transfer any of Customer’s rights or obligations in the Agreement without Hence’s prior written consent, and any such attempt is void. No permitted assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under the Agreement. Hence may terminate the Agreement in the event of a merger, reorganization or other transaction resulting in a change of control of the Customer, effective immediately upon notice of such termination to the Customer or to the surviving entity to which the Customer undergoes such change of control. The Agreement is binding upon and inures to the benefit of any respective successors and permitted assigns of the Parties hereto.
The Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
The relationship between Hence and Customer is one of independent contractors and nothing contained in the Agreement may be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party has authority to contract for or bind the other Party in any manner whatsoever.
Any provision that should by its nature survive the termination or expiration of the Agreement, does survive.
Each Party acknowledges that a breach or threatened breach by such Party of any of its obligations could cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at Law, in equity, or otherwise.
BEFORE ACCEPTING THIS AGREEMENT BY SUBMITTING AN SUBSCRIPTION ORDER TO HENCE, CUSTOMER IS ADVISED TO CAREFULLY READ THE TERMS OF THIS AGREEMENT AND ANY APPLICABLE DOCUMENTATION. BY CLICKING TO ACCEPT THIS AGREEMENT, CUSTOMER (1) AGREES TO BE BOUND BY AND BECOMES A PARTY TO THIS AGREEMENT AND (2) CONFIRMS THAT THE INDIVIDUAL ENTERING THIS AGREEMENT HAS AUTHORITY TO SO BIND CUSTOMER WITHOUT FURTHER ACTION BY CUSTOMER. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER SHOULD NOT CLICK THE “AGREE” BUTTON AND THE SERVICES WILL NOT BE USABLE.
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